Petitioner Krzysztof Bajdo, who is currently incarcerated at Menard Correctional Center, is serving a thirty-five year sentence for first degree murder. Bajdo has petitioned this Court for a writ of habeas corpus under 28 U.S.C. § 2254. The majority of Bajdo's claims are procedurally defaulted or not cognizable on federal habeas review. As for his ineffective assistance of counsel at sentencing claim, which the Court reaches on its merits, Bajdo has not demonstrated that the state court's decision was contrary to or an unreasonable application of clearly established federal law. The Court thus denies Bajdo's petition for a writ of habeas corpus.

BACKGROUND

The Court will presume that the state court's factual determinations are correct for the purposes of habeas review, as Bajdo has not pointed to clear and convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Todd v. Schomig, 283 F.3d 842, 846 (7th Cir. 2002). The Court therefore adopts the state court's recitation of the facts and begins by summarizing the facts relevant to Bajdo's petition.

I. Bajdo's Trial and Conviction

The following facts were established at Bajdo's jury trial: On October 11, 2003, Bajdo, Agnieszka Fulara, his girlfriend of three and a half months, and two other women went out to several nightclubs in Chicago, Illinois. Upon returning to Des Plaines, Bajdo first dropped off Fulara at her house and then dropped off the two other women. Suspicious that Fulara was cheating on him with her ex-boyfriend, Greg Schimscheiner, Bajdo then returned to Fulara's house to make sure she was still at home. Instead, Bajdo found her car gone and so decided to drive to the nightclub where Schimscheiner worked, where he saw Fulara parking her car. Bajdo approached Fulara and demanded that she not go into the club. After some argument, she agreed and the two drove away separately. They continued arguing on their cellular phones while driving until Bajdo asked Fulara to pull over so they could talk. Once parked, Bajdo entered Fulara's car. Their argument escalated, and at some point Fulara slapped Bajdo across the face. Their argument then subsided for a time only to again escalate after Fulara repeatedly denied having a romantic relationship with Schimscheiner. After Fulara stated she wanted to break up with Bajdo, Bajdo grabbed her throat and choked her until she became unconscious. He then retrieved a screwdriver from the trunk of Fulara's car and stabbed Fulara several times in the chest.

Leaving Fulara in her car, Bajdo took her cellular phone and the screwdriver and drove away. From Fulara's cellular phone, Bajdo sent text messages to Schimscheiner blaming him for what had just occurred. Bajdo then attempted suicide, colliding with a toll booth while driving at approximately 100 miles per hour. While in intensive care, he confessed that he killed Fulara and consented to a search of his car, where the screwdriver was found. Fulara's body was found in her car on October 12th. Dr. Ponni Arunkumar testified that she concluded from the autopsy results that Fulara died of strangulation, with multiple stab wounds being a significant contributing factor. The evidence was conflicting on whether the stab wounds alone were fatal.

The State charged Bajdo with first degree murder. At the jury instruction conference, however, his counsel requested that the jury be given a second degree murder instruction. The State objected. The trial court declined to provide the instruction, finding insufficient evidence of a sudden and intense passion resulting from serious provocation. The trial court noted that Bajdo and Fulara were not married or engaged and that Fulara's slap did not constitute substantial physical injury, substantial physical assault, or mutual combat. The jury was thus only instructed as to first degree murder. Soon after beginning its deliberations, the jury sent a note to the trial court asking whether it could consider convicting Bajdo of a lesser charge. Over Bajdo's objection, the trial court responded in the negative, indicating that there was no other charge for the jury's consideration. The jury returned a guilty verdict.

At sentencing, the State requested that Bajdo be sentenced to forty-five years in prison. The State presented evidence of aggravation, testimony from a friend of Fulara's, and victim impact statements from Fulara's parents and another friend. The State also noted that Bajdo's demeanor at trial was cold, calculated, and unemotional. Bajdo's counsel argued in mitigation that Bajdo was only twenty-five years old, lacked a criminal history, and had finished high school in Poland, pursued further education here, and held down a steady job. Counsel also noted that Bajdo attempted suicide, suffering serious injuries. He introduced a statement from Bajdo's grandmother, in which she described Bajdo as a caring and loving grandson who helped her around the house and stated that his actions on October 11, 2003 were a complete departure from his usual character. Bajdo made a statement. The trial court also had before it Bajdo's pre-sentence investigation report, which indicated that Bajdo was not then suffering from any physical health problems, had never been treated by a mental health professional, had never taken any psychotropic medication, and did not need to speak to a mental health professional. After considering everything before it, the trial court imposed a thirty-five year sentence.

II. Direct Appeal

Bajdo appealed with the assistance of counsel, arguing that (1) the trial court erred in refusing to instruct the jury on second degree murder and (2) his sentence was excessive because his rehabilitative potential was not considered. As part of his argument that the trial court erred in refusing to instruct the jury on second degree murder, Bajdo also contended that the trial court improperly responded to the jury's question regarding whether it could deliberate on a lesser offense. On November 22, 2006, the Illinois Appellate Court affirmed Bajdo's conviction and sentence. Bajdo filed a petition for rehearing, arguing that the trial court erred in refusing to instruct the jury on second degree murder. The Illinois Appellate Court denied the petition for rehearing on January 4, 2007.

Bajdo then filed a petition for leave to appeal ("PLA") with the Illinois Supreme Court, arguing that the trial court erred in refusing to instruct the jury on second degree murder and that the trial court improperly responded by answering the jury's question as to whether there was a lesser charge to consider in the negative. The Illinois Supreme Court denied the PLA on March 28, 2007. Bajdo did not file a petition for a writ of certiorari with the United States Supreme Court.

III. State Post-Conviction Proceedings

Bajdo, with the assistance of counsel, filed a timely post-conviction petition pursuant to 725 Ill. Comp. Stat. § 5/122-1 on September 25, 2007. He argued that (1) trial counsel was ineffective for failing to interview, investigate, and call witnesses who could testify to Bajdo's mental health and medical condition, which would have impacted the existence of an affirmative defense; (2) trial counsel was ineffective for failing to investigate and raise Bajdo's mental health and medical condition as mitigation during sentencing; and (3) he was denied due process by the trial ...

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